General – Animal Law Developments

March 26, 2025March 26, 2025 by Michelle Pardo

Maine Lobster Dispute Reaches Boiling Point

by Jesse Stavis

On February 6, 2025, Judge John A. Woodcock, Jr. of the District of Maine issued an eighty-five-page opinion denying a motion to dismiss filed by the Monterey Bay Aquarium Foundation (“Monterey Bay”) in a case concerning allegedly defamatory comments about the environmental impact of Maine’s lobster industry. At issue in Bean Maine Lobster, Inc. v. Monterey Bay Aquarium Foundation were warnings to consumers to avoid Maine lobster due to the industry’s alleged impact on endangered right whales. Read Duane Morris previous blog about this case here.

As part of its conservation efforts, Monterey Bay publishes Seafood Watch, a sustainable seafood advisory list that advises consumers and commercial buyers of seafood on the environmental impact of fishing and trapping operations. Seafood Watch had long rated Maine lobster as a “yellow” product, which means that consumers can feel comfortable buying it but should be aware of certain concerns, but in 2020 it decided to change the rating to red. This relabeling was motivated by concerns about the lobster industry’s impact on right whales, a critically endangered species. Specifically, Seafood Watch pointed to the risk of right whales becoming entangled in the ropes affixed to lobster pots.

The decision to relabel lobster had a major impact on Maine’s billion-dollar lobster industry. Because many commercial buyers rely on Seafood Watch, the relabeling caused a sharp 40% decline in lobster prices.

Reeling from the pinch of the announcement, two industry groups and three lobster companies sued Monterey Bay, alleging that the report that led to the relabeling was defamatory. The plaintiffs argued that the state’s lobster industry had taken a number of measures to protect right whales, including using sinking lines for traps, increasing the number of traps on a given line, and using weak ropes that break away when a whale becomes entangled. They further pointed to the fact that there had not been a single documented case of entanglement in a Maine lobster line since 2004—most entanglements were caused by the thicker lines used by Maine crabbers and Canadian lobstermen. (Notably, during the course of the litigation, a right whale died after becoming entangled in Maine lobster lines; the significance of this development was a major point of contention.)

Defendant Monterey Bay moved to dismiss the complaint on several grounds. First, the defendant argued that the Maine federal court lacked jurisdiction because its only contact with Maine was maintaining a website that was accessible in that state. The court denied this challenge, noting that a Monterey Bay representative gave a lengthy interview about the report to a Maine-based magazine. In a broader sense, the court reasoned that leveling accusations against the lobster industry would inevitably have an impact on Maine because “Maine is synonymous with lobster.”

Having dispensed with the jurisdictional issue, the court turned to the question of whether plaintiffs had stated an adequate claim of defamation. Here, Monterey Bay made three arguments: (1) that its statements were about the lobster industry in general, and not about the individual plaintiffs; (2) that the statements were protected because they were merely opinions; and (3) that plaintiffs could not show either malice or negligence. The court rejected each of these arguments in turn.

First, the court noted that even though Seafood Watch’s report had not mentioned the individual plaintiffs, it had made claims about the entire industry that would necessarily apply to each plaintiff. Second, the court held that plaintiffs had plausibly alleged that the statements in the report were statements of fact, rather than opinion. Here, the court noted that the report included a number of categorical claims (e.g., “At this time, each fishery using this gear is putting this protected species at risk of extinction; “[M]anagement measures… have not been successful at reducing serious injury and mortality”). A reasonable reader, the court concluded, could take claims like this as objective statements of fact. Third, the court held that the plaintiffs had adequately alleged either malice or negligence. The court noted that while citing sources for a conclusion generally shields a publisher from allegations of defamation, there is an exception where the publisher “deliberately ignores evidence that calls into question his published statements.” Because the lobster industry had shared a wealth of data and counterarguments during the writing of the report, and because Seafood Watch had decided to discount this information, a reasonable jury could find that there was actual malice.

Judge Woodcock’s opinion did not mark the end of the dispute. On March 6, Monterey Bay filed an appeal. If the appeal is rejected, and assuming the parties do not settle the dispute, the case will proceed to discovery.

March 24, 2025March 27, 2025 by John M. Simpson

D.C. Circuit: Machine Using AI to Create Artwork Cannot Own a Copyright in the Artwork

On March 18, 2025, the U.S. Court of Appeals for the D.C. Circuit affirmed a district court ruling that a work created with artificial intelligence (AI) using a machine cannot be registered in the name of the machine itself because the Copyright Act requires that a copyright owner be a human being. Thaler v. Perlmutter, No. 23-5233 (D.C. Cir. Mar. 18, 2025).

The plaintiff had created a picture entitled “A Recent Entrance to Paradise” with a machine called the “Creativity Machine” that generated the artwork using AI. The plaintiff applied for copyright protection, listing the machine as the author and the plaintiff as the owner. Plaintiff argued (1) that, under the Copyright Act, an “author” need not be a human being but can be a machine; and (2) that plaintiff could be the owner of the work under the work-for-hire doctrine because non-humans such as corporations can be authors under this doctrine. As did the Copyright Office and the district court, the appellate court rejected both arguments.

As to the first point, the court noted that, while the Copyright Act does not define “author,” the statute’s use of that term is incompatible with a machine being an author. This is because, under the Copyright Act an “author”

must have the legal capacity to own property;
must have a lifespan since copyrights generally last for the author’s life plus 70 years;
must have surviving spouses or children under the statute’s inheritance provision;
must have a signature;
must have a nationality or domicile;
must have intentions since authors of joint works intend that the contributions be merged together.

[Slip op. at 11-12.] Machines can do none of these things. Furthermore, the Copyright Act at several places discusses machines and makes it clear that machines are tools not authors.

As to plaintiff’s work-made-for-hire argument, the court observed that that provision “allows the copyright and authorship protections attaching to a work originally created by a human author to transfer instantaneously, as a matter of law, to the person who hired the creator.” [Slip op. at 17.] The fact remains that the author of the work for hire must still be a human being.

While the plaintiff also argued that he should be considered the “author” of the work because he made and used the Creativity Machine, the court deemed this argument waived because it was not made to the Copyright Office. [Slip op. at 23.]

So, one might ask, what does this case have to do with animal law? Well, the Thaler case illustrates the arguments made by litigants seeking to get courts to convey to animals or other non-humans rights and privileges conventionally held only by human beings. One such argument in Thaler was the plaintiff’s point that the dictionary defined “author” as “one that originates or creates something” and therefore was not limited to human beings. However, as the court observed:

[S]tatutory construction requires more than just finding a sympathetic dictionary definition. We “do not read statutes in little bites,” or words in isolation from their statutory context. Kircher v. Putnam Funds Tr., 547 U.S. 633, 643 (2006). The judicial task when interpreting statutory language, instead, is to discern how Congress used a word in the law.
[Slip op. at 16.]

In fact, the D.C. Circuit made a specific connection to animal law by citing the decision in Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018), in which the Ninth Circuit held that a monkey cannot be an “author” under the Copyright Act. And, like Thaler, animal rights groups have tried to base their arguments on dictionary definitions. See, e.g., Animal Leg. Def. Fund v. U.S. Dep’t of Agriculture, 933 F.3d 1088, 1094 (9th Cir. 2019) (the term “individual” in the Freedom of Information Act cannot reasonably be interpreted to include a Bengal tiger).

As AI continues to develop and grow more robust, stayed tuned for more novel arguments in this space.

March 10, 2025March 10, 2025 by John M. Simpson

PETA Claims First Amendment Right to Communicate with Monkeys

The Beach Boys wrote a song called “Pet Sounds.” In a recently filed federal lawsuit, animal rights organization People for the Ethical Treatment Animals (“PETA”) claims that it has a First Amendment right to receive monkey sounds (as well as monkey movements).

The lawsuit, filed on March 6, 2025 in the U.S. District Court for the District of Maryland, is entitled People for the Ethical Treatment of Animals v. National Institute of Mental Health, et al., No. 8:25-cv-00736-PX. The case centers on research done in an NIMH laboratory that utilizes the Rhesus Macaque. According to the Tulane University National Primate Research Center, Rhesus Macaques are placed within the Cercopithecidae family (Old World Monkeys), So, for simplicity, we’ll refer to them as monkeys.

The gravamen of the lawsuit is that the federal defendants turned down PETA’s request for a live-stream audiovisual feed of the monkeys in the laboratory. PETA claims that the monkeys are “willing speakers” who “regularly communicat[e]” about their physical and psychological condition. According to PETA’s complaint, experts in monkey communication claim the ability to understand the information that the animal sounds, body posture, facial expression and other actions purportedly convey. PETA claims that denying it the ability to communicate with “fellow primates” violates PETA’s First Amendment rights, and PETA therefore wants the court to permanently enjoin the defendants from “withholding from PETA … access to the rhesus macaques’ communications.”

PETA’s track record in opposing animal-based medical and mental health research is well-known. Thus, most of the complaint is devoted to describing the research that is performed, the conditions of the laboratory and in making PETA’s overall case for the abolition of animal-based research. However, the First Amendment predicate for the case is extremely thin, if not nonexistent. PETA cites a number of cases to the effect that there is a First Amendment right to receive information even though the speaker may not, itself, have a First Amendment right. But PETA cites no case (and we are aware of none) holding that the sounds and body gestures of a monkey constitute speech that is protected under the First Amendment – whether it concerns the speaker’s right to speak or the listener’s right to receive.

PETA’s complaint also pleads a denial of due process under the Fifth Amendment but is very vague on what “property” or “liberty” interest of PETA was allegedly violated.

This isn’t the first time that PETA and other animal rights groups have sought attention by trying to get a court to confer human rights on an animal, but very few of these efforts has succeeded. Thus, killer whales are not subject to the Thirteenth Amendment, elephants are not covered by the writ of habeas corpus, a Bengal tiger can’t pursue a Freedom of Information Act request, humans don’t have “next friend” standing to pursue a copyright claim on behalf of a monkey or a bill of attainder claim on behalf of a barn owl, and dogs, birds and dugongs don’t have standing in federal court to sue. PETA’s current effort to have a federal court declare monkey speech protected by the First Amendment would clearly seem to be headed for a similar fate. Indeed, the U.S. Court of Appeals for the Eleventh Circuit rejected an effort to invoke the First Amendment on behalf of “Blackie the Talking Cat,” an animal that allegedly “spoke, for a fee, on radio and on television shows such as ‘That’s Incredible.’” Miles v. City Council of Augusta, Ga., 710 F.2d 1542, 1543 (11th Cir. 1983) (per curiam). Affirming dismissal of the First Amendment claim, the court ruled that it “will not hear a claim that Blackie’s right to free speech has been infringed. . . . [A]lthough Blackie arguably possesses a very unusual ability, he cannot be considered a ‘person’ and is therefore not protected by the Bill of Rights.” Id. at 1544 n.5.

February 28, 2025February 28, 2025 by Michelle Pardo

USDA Office of Inspector General’s Audit of Dog Breeders: Have Inspectors Been Barking Up the Wrong Tree?

By Michelle C. Pardo

On February 3, 2025, the United States Department of Agriculture’s (USDA) Office of Inspector General (OIG) released a report of an audit that OIG had performed of the Animal Care Program Oversight of Dog Breeder Inspections. Audit Report 33601-0001-22 (Audit Report).

OIG’s objective? To determine: (1) whether selected dog breeders corrected Animal Welfare Act (AWA) noncompliances previously identified in USDA inspections; and (2) whether the USDA carried out enforcement actions on dog breeders with substantiated AWA violations during the audit period. Audit Report at 3.

February 27, 2025February 27, 2025 by John M. Simpson

U.S. Supreme Court Limits “Prevailing Party” Status for Attorney’s Fee Recovery by Plaintiffs

The U.S. Supreme Court’s recent opinion in Lackey v. Stinnie, No. 23-621 (U.S. Feb. 25, 2025), clarified for plaintiffs what it means to be a “prevailing party” for recovery of attorney’s fees. While the case arose under the attorney’s fee provision for civil rights cases – 42 U.S.C. § 1988(b) – the holding has broader implications for federal court litigation, particularly where the only relief sought by the plaintiff is injunctive relief.

The case was a civil rights challenge by Virginia automobile drivers pursuant to 42 U.S.C. § 1983, claiming that they were denied due process by a Virginia statute that required suspension of their drivers’ licenses without sufficient notice or hearing for failure to pay parking tickets and the like, with the suspension lasting until the fine was paid or a payment plan established. The district court granted a preliminary injunction, finding that plaintiffs were likely to prevail on their constitutional claim. Before the case could be tried, the state legislature repealed the statute at issue, and the parties, agreeing that the case was moot, stipulated to dismissal. Plaintiffs then sought recovery of their attorney’s fees under section 1988(b), which permits an attorney’s fee award to a “prevailing party,” inter alia, in a section 1983 case. Plaintiffs argued that, by obtaining a preliminary injunction that, in all likelihood, led to the repeal of the statute, they were “prevailing parties.” The Fourth Circuit, sitting en banc, agreed with plaintiffs, but the Supreme Court, in an opinion by Chief Justice Roberts, reversed.

Relying on a legal dictionary definition of “prevailing party” contemporaneous with the enactment of section 1988(b) – a party who successfully prosecutes the action – the Court reasoned that, because a preliminary injunction is based only on a likelihood of success on the merits, the plaintiff who obtains such relief has not “prevailed:”

Because preliminary injunctions do not conclusively resolve the rights of parties on the merits, they do not confer prevailing party status. A plaintiff who secures a preliminary injunction has achieved only temporary success at an intermediary “stage[ ] of the suit.” Black’s Law dictionary 1352. It cannot yet be said that he will “ultimately prevail[] when the matter is finally set at rest” or that he will have “successfully maintained” his claim “at the end.” Ibid. And external events that render a dispute moot do not convert a temporary order designed to preserve the status of the parties into a conclusive adjudication of their rights. [Slip op. at 7.]

According to the Court, its ruling “serves the interests of judicial economy. A straightforward, bright-line rule is easy to administer, reducing the risk of a ‘second major litigation’ over attorney’s fees.” [Slip op. at 10]. In this regard, the Court dismissed the plaintiffs’ concern that a defendant could “strategically moot” a case and avoid an award of attorneys’ fees if it feared ultimately losing the case. The Court noted that plaintiffs with damage claims would not face that threat and, even in cases seeking only injunctive relief, the case does not become moot if the challenged conduct is capable of repetition yet evading review. [Slip op. at 10]. At bottom, it is up to Congress to decide whether attorney’s fees should be awarded to plaintiffs who achieve some success but do not prevail – as is the case with Freedom of Information Act claims where plaintiffs can seek legal fees if they “substantially prevail[].” Id. at 11 (citing 5 U.S.C. § 552(a)(4)).

The Court did, however, limit its ruling to prevailing plaintiffs:

Our decision today should not be read to affect our previous holding that a defendant need not obtain a favorable judgment on the merits to prevail, nor to address the question we left open whether a defendant must obtain a preclusive judgment in order to prevail. See CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419, 431-434 (2016). As we have explained, “[p]laintiffs and defendants come to court with different objectives.” Id., at 431. [Slip op. at 9 n.*].

The decision in Lackey is likely to have implications beyond section 1988(b). Several federal statutes award legal fees to “prevailing parties.” In some regulatory cases, the preliminary injunction is in fact the main event of the case. For example, animal rights activists often file lawsuits under the National Environmental Policy Act or the Endangered Species Act, seeking to enjoin individual transactions or other activities by businesses who use animals for various purposes. The granting of a preliminary injunction, even though it is not a final determination of the merits of the case, could spell the end of the defendant’s project, either because the opportunity for the transaction has come and gone or the defendant does not have the resources to further litigate the case. Yet, in such circumstances, the plaintiff would not be entitled to seek attorney’s fees under the rationale of the Lackey case.

Whether Lackey has the result of cutting down on litigation by plaintiffs in in the regulatory sphere remains to be seen. However, that is what the dissenting opinion by Justice Jackson predicts. She points to research on the effect of the Court’s rejection of the “catalyst theory” in Buckhannon Bd. & Care Home, Inc. v. West Va. Dep’t of Health & Hum. Resources, 532 U.S. 598 (2001), i.e., the theory that a plaintiff “prevails” if its suit was the catalyst for the defendant’s change in conduct. According to the dissent, Buckhannon “had the predictable practical effect of discouraging public interest organizations and private attorneys from taking on civil rights actions.” [Dissenting op. at 18].

February 4, 2025February 4, 2025 by John M. Simpson

PETA’s Animal Shelter Still Shows Grim Euthanasia Results

Animal rights group People for the Ethical Treatment of Animals (PETA) runs a facility that it calls an animal “shelter” in Norfolk, Virginia. All animal shelters in the Commonwealth of Virginia must report annually the number of animals the shelter takes in and what happened to them. These reports are filed with the Virginia Department of Agriculture and Consumer Services (VADCS) and are publicly available through that agency’s website.

PETA’s reports for 2024 show a high percentage of euthanized animals. PETA has maintained over the years that this death rate is because PETA accepts all types of animals, regardless of how poor the physical condition or likelihood of survival the animal’s situation may be. However, the public shelter in Norfolk — the Norfolk City Animal Control and Public Animal Shelter (NACC) — which also has an open admission policy, has a much lower euthanization rate. PETA has tried to claim that it serves a broader area, but NACC and PETA are only about 6 miles apart, so the differing euthanasia rates are not likely attributable to proximity. Furthermore, the overall euthanasia rate in the Commonwealth of Virginia for dogs and cats also is significantly lower than PETA’s. These trends are shown below in the graph that is based on 2024 filings with VDACS:

PETA’s euthanasia rates for dogs and cats have been consistently high over the last ten years, as the chart below (also based on VDACS collected data) illustrates:

The overall totals for this ten-year period are shown below:

PETA winces at the claim that it kills animals, but it does exactly that and in outsized numbers. If every single one of the dogs and cats that PETA puts down is beyond saving, then PETA ought to be able to say that in their intake policy, which they also must file with VDACS. But they don’t say that. The resulting silence is deafening, particularly when coupled with PETA’s well known, negative views on “pet” ownership:

Consider it from the perspective of animals who are kept as companions: Humans control every aspect of their lives-when and what they eat, whom they interact with, what they have to entertain themselves, even when and where they are allowed to relieve themselves. Dogs long to run, sniff, play with other dogs, and mark their territory. Cats yearn to scratch, climb, perch, and play. But they can’t satisfy these natural desires unless the people they depend on give them the opportunity to do so – and they often don’t.

PETA had $69,874,898 in revenue and $28,958,530 in net assets in 2023 according to its Form 990 filed with the IRS. Maybe PETA could take some of that money and do a better job of adopting out some of the dogs and cats that come into their possession.

January 23, 2025January 24, 2025 by Michelle Pardo

How the Delta Smelt Swam Into a Political Firestorm

by Michelle C. Pardo

Southern Californians have been reeling from the devastation caused by the recent record-breaking wildfires and now face the daunting task of rebuilding their lives. As is the case in the wake of many disasters, a need for answers and accountability as to what caused or contributed to the disaster remains paramount. Just days after the fires started, headlines suggested that a small, nondescript fish – the Delta smelt (Hypomesus transpacificus) is to blame for the Palisades and other Los Angeles area wildfires. Did environmental protections for the Delta smelt really cause a statewide water crisis? Or is the Delta Smelt blame game but a fishy theory that has become a political football?

The Delta smelt is a 2-2.8 inch long fish that lives in the Sacramento-San Joaquin River Delta – a place that has been the center of the fight over water in California. Once present in abundance, the smelt began its decline around the mid-20^th century and is now nearing extinction. Most Delta smelt live for only one year and even temporary environmental conditions can greatly affect their population. The largest impact on the fish has occurred after extended periods of drought, which increased the need for California’s cities and farms to pump more delta water – leaving the fish with less fresh, cold water. Other threat factors include disease, competition (including with invasive clams and mussels that were introduced to the river) and predation. Additionally, pumps operated by the state and federal government can suck smelt and other fish into the system.

The Delta Smelt’s Protections

The listing of the Delta Smelt – first, in 1993 as threatened under the federal Endangered Species Act (ESA) and the state analog, California Endangered Species Act (CESA), and later uplisted to endangered in California (2010) – affects how much water can be pulled from the delta.

When listed as threatened or endangered under the federal ESA, several protections kick in. The ESA makes it illegal to import, export, take, posses, sell or transport an endangered species. 16 U.S.C. § 1538. It also provides that land or water necessary for the survival of the species may be designated as “critical habitat.” While the designation of critical habitat does not prevent all development or other activities in a designated area, activities that involve a federal permit, license or funding and are likely to destroy or adversely modify critical habitat, must undergo analysis and amendments to the project to proceed without adversely affecting critical habitat. Highly-charged disputes often occur when the government uses controversial or methods not ground in accepted science to assess what areas are actually occupied by the species and what physical and biological features a species needs to survive.

According to the U.S. Fish and Wildlife Service, “An area may be excluded from critical habitat designation based on economic, national security, or other relevant impacts. In some cases, we may determine that the benefits of excluding it outweigh the benefits of including it.” https://www.fws.gov/sites/default/files/documents/critical-habitat-fact-sheet.pdf.

While an oversimplification of a complex issue, this is where the competing interests of those cities and farms that have a desperate need for water come head to head with the needs of the Delta smelt and other fish endemic to California to survive.

Swimming Into Political Controversy

California’s water management policies have long clashed with environmentalists, agricultural interests and urban planners. Why? As it turns out, water is universally necessary, but agricultural, fishing, municipal and wildlife uses all have different priorities.

During President Trump’s first Administration, new rules would have allowed farmers to access more water from California’ s largest river systems. Environmentalists claimed it would push the Delta smelt and other species to the brink of extinction. In 2019, two federal agencies issued biological opinions under the ESA that despite finding federal action would not jeopardize listed species, the water projects actually reduce protections for the species and their critical habitat in contravention of the ESA and its purpose. An ESA biological opinion – required when a federal agency is authorizing, funding or carrying out an action – is a document that analyzes how a proposed action may impact listed species and critical habitats. 16 USC § 1536(a)(2). If the federal action is likely to harm or jeopardize the listed species, the government may propose alternatives that will minimize the effect on the listed species, or scrap the project. 16 USC § 1536 (b)(1)(3)(A).

In 2020, California sued the federal government, alleging that the biological opinions “failed to take a ‘hard look’ at the environmental impacts of planned the federal water project.” The lawsuit further alleged:

The Central Valley Project harms ESA-listed fish species in the Sacramento River and San Joaquin River watersheds by, for example, directly taking fish at the project’s South Delta pumping facility, redirecting fish from their migratory pathways, and altering the species’ natural habitat. Habitat alterations resulting from project operations include changes to river flow, hydrology, salinity, and water temperature.

Becerra v. Ross et al., No. 3:20-cv-01299 (N.D. Cal) at p. 8.

The Trump Administration described the lawsuit as a “catastrophic halt” of “enormous amounts of water to flow from the snow melt and rainwater in rivers in North California to beneficial use in the Central Valley and Southern California.”

Fast forward to January 7, 2025, when parts of Southern California was hit with the most devastating wildfires on record. The wildfires – and what contributed to them – has revived this contentious debate. The Delta smelt – previously described by President Trump as “an essentially worthless fish” was targeted as the culprit for why farmers and cities had limitations on the amount of water they could receive.

But in addition to the water needed by farmers and major cities, endangered and threatened species like the Delta smelt require their own flow of fresh water, known as “outflow.” Without the needed outflow, salt water can move upstream making the delta waters too brackish and potentially harm certain species of fish. To counter this risk, water must be allowed to flow out of the system. The flows needed to protect the region’s ecosystem – which help support migration and spawning of delta smelt, salmon, longfin smelt and other fish species, – account for about 10% of all available flows. Some have called the wildlife-protection outflow as having an insignificant role in water projects.

Governor Newsom’s office rebuffed President Trump’s claims, denying that President Trump ever asked him to sign a “water restoration declaration” and others insist that the Delta smelt is not the source of the controversy regarding water projects.

On January 20, 2025, just hours into his second term, President Trump signed an executive order directing federal agencies to route more water from across the state. In a Memorandum to the Secretary of Commerce and the Secretary of the Interior titled: “Putting People over Fish: Stopping Radical Environmentalism to Provide Water to Southern California” https://www.whitehouse.gov/presidential-actions/2025/01/putting-people-over-fish-stopping-radical-environmentalism-to-provide-water-to-southern-california/, President Trump directed the Secretaries of Commerce and Interior to:

“immediately start” the work from his first Administration to “route more water from the Sacramento-San Joaquin Delta to other parts of the state for use by the people there who desperately need a reliable water supply.”

The Memo requires the Secretaries of Commerce and the Interior to report to the President regarding progress made in implementing policies in the memo and providing recommendations regarding future implementation.

Governor Gavin Newsom and others in California regulatory agencies have disputed that the Delta smelt and its environmental protections are to blame for water shortages in the state (while also disputing the fact or extent of water shortages in the first place). Some scientists insist that hydrology and outflow to ensure freshwater for human use has much more of an effect on the projects ability to deliver water than the current ESA safeguards. Regardless of who is right, President Trump has suggested that federal disaster aid to recover from the wildfires may be conditioned upon California cooperating with federal government water policies, making it difficult for the state to cling to existing water policy.

One thing remains clear: as urban development continues, and natural resources grow scarce, the clash between a state or municipality’s ability to deliver necessary resources in a manner that does not risk extinction of threatened or endangered species will likely continue.

January 22, 2025January 24, 2025 by John M. Simpson

Colorado Supreme Court Concludes (Unsurprisingly) That Elephants Aren’t Persons

On January 21, 2025, the Supreme Court of Colorado affirmed a lower court ruling that elephants maintained in a zoo were not properly the subject of a habeas corpus petition pursued by the animal rights group, Nonhuman Rights Project (NRP). Nonhuman Rights Project, Inc. v. Cheyenne Mountain Zoological Society, No. 24SA21 (Colo. Jan. 21, 2025). As the court observed, “We are not alone in rejecting NRP’s attempt to extend the great writ to nonhuman animals. . . . Every one of [NRP’s] petitions for writ of habeas corpus has been denied for the same or very similar reasons.” Slip op. at 16.

NRP filed the writ arguing that five elderly African elephants (Loxodonta africana) located at the Cheyenne Mountain Zoo (Missy, Kimba, Lucky, LouLou and Jambo) were “unlawfully confined” and should be relocated to an elephant sanctuary. Petitioner argued that elephants held in a zoo are prone to suffer from “chronic frustration, boredom, and stress, resulting over time in physical disabilities, psychological disorders, and, often, brain damage.” Slip. op. at 6. The zoo “vigorously disputed the factual allegations in the Petition, pushing back against the suggestion that the elephants were receiving anything short of remarkable care.” Id.

The Supreme Court concluded that habeas relief was unavailable here because the Colorado habeas statute only applies to “persons,” and “persons” means human beings:

Colorado’s habeas corpus statute does not define the term “person.” It is, however, defined by section 2-4-401, C.R.S. (2024), which contains definitions that “apply to every statute, unless the context otherwise requires.” Under section 2-4-401(8), “‘Person’ means any individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, limited liability company, partnership, association, or other legal entity.” Looking to the dictionary, the term “person” is defined as an individual human being. See Person, Black’s Law Dictionary (12th ed. 2024) (“[a] human being”); Person, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/person [https://perma.cc/6AX5-9MCH] (“human, individual”).

Given the statutory definition of the term “person” and the plain and ordinary meaning of the term found in the dictionary, we conclude that the General Assembly’s choice of the word “person” demonstrates its intent to limit the reach of section 13-45-102 to human beings. Our conclusion is further bolstered by the fact that including nonhuman animals in the definition of the term “person” is the type of monumental change in the law that one would reasonably expect the General Assembly to make explicit. That is, “[i]f [the General
Assembly] intended to take the extraordinary step of authorizing animals as well as people . . . to sue, they could, and should, have said so plainly.” [Slip op. at 14-15 (citation omitted).]

The court likewise was not persuaded that the common law writ of habeas corpus was available: “[N]othing in the common law supports NRP’s position, which rests primarily on a concurring opinion and two dissenting opinions in its unsuccessful efforts to extend the writ of habeas corpus to nonhuman animals.” Slip op. at 16. This was the case notwithstanding NRP’s argument that elephants are “autonomous:” “Habeas protections flow from the status of being a person, not from a being’s ability to pass some type of autonomous capacity test.” Id. at 18.

It also was significant that NRP was not seeking to actually “liberate” the elephants but, instead, to move them to another form of confinement in a sanctuary: “The fact that NRP merely seeks the transfer of the elephants from one form of confinement to another is yet another reason that habeas relief is not appropriate here.” Slip op. at 19.

As the court summed it up:

Simply put, no Colorado court, nor any other court in any other jurisdiction in the United States has ever recognized the legal “personhood” of any nonhuman species. [Slip op. at 17.]

NRP has, for years, sought to push its animal rights agenda by burdening zoos and other exhibitors with habeas petitions seeking to move elephants to sanctuaries on the theory that holding such an animal in a zoological setting is deleterious to the animal’s welfare. (We have written about NRP’s actions several times, for example here.) Such assertions of poor welfare generally are baseless. For example, litigation involving the Ringling Bros. Circus elephants demonstrated that they generally lived longer than their wild counterparts. In fact, Ringling had one circus elephant who lived well into her mid-70’s. One would think that these habeas petitions would, at some point, be found by the courts to be frivolous.

January 21, 2025January 21, 2025 by John M. Simpson

Turns Out That DOGE Already Existed – Just With a Different Name

At the federal level, stakeholders in the animal space often encounter regulators such as the U.S. Department of Agriculture’s Animal & Plant Health Inspection Service or the Department of Interior’s Fish & Wildlife Service. Not uncommonly, federal regulation is heavy-handed. Thus, the regulated have been keenly interested in the much discussed Department of Government Efficiency or “DOGE” that President Trump touted during the presidential campaign. As originally described, DOGE – an advisory body to be headed by Elon Musk and Vivek Ramaswamy – would cut regulations and headcounts within the federal government.

Interestingly enough, however, when it came time to actually creating DOGE, President Trump’s January 20, 2025 Executive Order simply renamed and reorganized the duties of an existing federal agency – the United States Digital Service (“USDS”). USDS has been around for ten years. It was created by President Obama in 2014. The USDS website describes the agency’s mission as follows:

USDS brings together interdisciplinary teams of top technologists – including engineers, data scientists, designers, user researchers, product managers, and procurement experts – who collaborate closely with agency experts to tackle important problems. This collaborative approach prioritizes human-centered engineering and design, focusing on iterative improvements to create user-friendly, reliable, and seamless digital services.

USDS states that it puts together teams of individuals with the relevant expertise who, “with tours of service lasting no more than four years . . . bring[] fresh perspectives on technology and delivery to the government.” Among USDS’s listed achievements are improved user and customer digital experiences for the Veterans Administration, Social Security Administration, Internal Revenue Service and the Centers for Disease Control.

President Trump’s January 20, 2025 Executive Order (EO) “establishes the Department of Government Efficiency to implement the President’s DOGE agenda by modernizing Federal technology and software to maximize governmental efficiency and productivity.” The EO renames USDS as the United States DOGE Service. The EO requires each federal agency head to establish a “DOGE Team” within their respective agencies which will advise the agency head on “implementing the President’s DOGE Agenda.” According to section 4(a) of the EO,

The USDS Administrator shall commence a Software Modernization Initiative to improve the quality and efficiency of government-wide software, network infrastructure, and information technology (IT) systems. Among other things, the USDS Administrator shall work with Agency Heads to promote inter-operability between agency networks and systems, ensure data integrity, and facilitate responsible data collection and synchronization.

So, what was described originally as an initiative that would basically slash and burn through the federal bureaucratic state, appears, at least in its original formulation, to be largely a plan to overall federal agencies’ information technology capabilities to maximize efficiency. Whether the United States DOGE Service expands its role beyond technological improvement remains to be seen.

As reported by several media outlets, within 15 minutes of President Trump’s oath of office and before the EO was even signed, several groups filed suit claiming that DOGE is an unlawful advisory committee under the Federal Advisory Committee Act. Whether those litigants revise their claims in light of the actual language of the EO is another thing that remains to be seen.

November 20, 2024 by Michelle Pardo

Washington State Enacts World’s First Legislation to Ban Octopus Farming

By guest blogger:

Madison Gutzman, 2026 J.D. Candidate, Texas A&M University School of Law

Washington House Bill 1153, which prohibits the farming of octopuses in Washington State, was signed into law on March 13th, 2024. Washington leads the charge in legislation of this kind, but California and Hawaii are not far behind. Representative Strom Peterson sponsored the bill to keep octopus farms from hurting the environment and causing the suffering of octopuses. Rep. Peterson argues it is well past time to prohibit octopus farming. However, no octopus farms currently exist in the world. So, what sparked this surge in legislation?

Construction of the world’s first octopus farm has been proposed in Gran Canaria, Spain. Controversy sparked after an animal rights group released confidential plans behind the farm’s operation. The seafood company behind the farm had announced scientific advancements in the breeding and captivity of octopuses that would lead to commercial farming operations. Claire Marshall, World’s first octopus farm proposals alarm scientists, BBC (Mar. 15, 2023), https://www.bbc.com/news/science-environment-64814781. Scientists and animal activists are concerned about the wellbeing of octopuses in farming conditions. Octopuses are clever, solitary creatures who typically thrive in coral reef systems. The company’s plans include 10-15 octopuses living in one cubic meter of tank while being fed a dry pellet food. Id. This differs from the live fish they usually eat in the open ocean. Additionally, octopuses are incredibly territorial and young octopuses can be prone to cannibalism when in close quarters. The company estimates a 10-15% mortality rate among the farm raised octopuses. Id.

Perhaps the most controversial practice in the proposed operation is the method of killing these octopuses. The seafood company proposes an “ice slurry” method that would require octopuses to be put into below-freezing water until they die. Some scientists have argued this is a slow, painful death for a creature recognized by the UK’s Animal Welfare (Sentience) Act as “sentient beings.” Id. Given the objection to such practices, why is octopus farming a topic of U.S. legislation?

The number of octopuses caught each year has increased tenfold in the last 70 years. Id. As the demand for octopus grows, efforts to farm these sentient cephalopods aren’t likely to cease any time soon. U.S. legislation banning octopus farming within our borders is a win for aquatic animal rights groups. While it is unclear whether or not octopus farms would ever make their way to American soil one day, the United States is one of the biggest importers of octopus. Washington’s legislation only bans actual farming, so the state might still contribute to the demand for octopus farms overseas. However, the OCTOPUS Act of 2024, a bipartisan bill introduced by the founders and co-chairs of the Senate Oceans Caucus, would also prohibit imports of farm-raised octopus from other countries. S. 4810, 118th Cong. (2023-2024). Federal legislation in the United States would undoubtedly have a greater financial impact on octopus farming operations in Spain. Foreign countries might be deterred from continuing the costly research and creation of octopus farms if a major importer isn’t in the market.

From humble beginnings as a Washington house bill, an octopus farming ban could be a step toward more animal welfare focused legislation for cephalopods. Aquatic farming in general has risen in popularity over the last few decades, so it is only natural that animal legislation adapts to market trends and consumer demands. As humans continue to deplete natural aquatic resources, we’re likely to see an increase in demand for other farm raised aquatic animals as well. This legislation is a peek into where people draw the line in aquatic farming today, but this line is sure to continue to move as these practices evolve.

Outside of this legislation’s impact on animal law, there is a potential human cost to such animal welfare legislation. Washingtonians criticized the introduction of this legislation because they felt it was a little tone deaf to the humanitarian needs of the state. Homelessness, opioid addiction, violent crime, and property crime are rampant issues in Washington. While Washington residents are generally very environmentally conscious, they denounced the use of legislators’ time and effort being spent on drafting highly proactive bills banning proposed animal farming practices. The octopus farming ban was proposed around the same time as a bill banning Styrofoam takeout containers, so residents may have been hyperaware of legislation they felt was not as important to the human welfare crisis. While this concern may not be as prevalent at the federal level, there is always a concern that legislative resources are being spent on issues that miss the mark in the eyes of the people.

By any measure, this type of legislation no doubt raises competing and evolving issues related to market pressures, sustainability and animal welfare, that will continue to be debated in the future.